Income for partner living in a care home

Hi,

My client is 54 years of age and lives alone.

Her partner has lived in a permanent care home since 2001 after an accident.  He receives ESA(SC) and Industrial Injuries Benfit at £158.10 per week.  Both of these are paid into my client’s bank account as she is his appointee.

She recently lost her job so had to claim Housing Benefit.  The decision maker is treating my client as a single claimant with income of ESA(SC) & IIB.  As a result, she fails to qualify due to excess income.

I’ve looked up the regs and think that as my client’s partner is not in ‘the family’ the income should be treated as hers. My client confirms that she uses the money on food, household bills etc so it can’t be disregarded.

If anyone has any experience of a case like this or advice that would be great.

Thanks

Allan

P.S The customer is applying for JSA(C).

The fact that its paid into her bank account as the partner’s appointee does not make it her income, it remains his.  She is simply holding the monies in trust

There are a number of Commissioners decisions on beneficial ownership of income and capital. ( I dont have these to hand though.)

Stainsby - 07 February 2013 12:12 PM

The fact that its paid into her bank account as the partner’s appointee does not make it her income, it remains his.  She is simply holding the monies in trust

That was my initial thought, and I do agree, but what got me thinking again was the fact that she used the funds for her own purposes. It still doesn’t mean the LA is right though!!

It may still fall under a partial or full income disregard…...any thoughts?

How would the LA identify funds that were used for her own purposes?  Can they identiify any of the partners benefit payments as voluntary payments made to her?

Many thanks

I’ve looked over the decision by the LA and think they are using reg HB42(6)(a) to make their decision.  They have quoted an extract from the DWP HB/CTB guidance manual which I have copied and pasted below.

‘Any payment made to a member of the family in respect of a third party who is not a member
of the family for HB or CTB purposes, for example a child in long stay hospital care, should be
treated as income only if it is retained by or spent on a member of that family’.

So, I could get money spent on the customer’s partner disregarded but that seems to be about it?  I can’t find any caselaw on this matter.

Any further input is appreciated.

Cheers

Allan Ramsay - 07 February 2013 03:56 PM

‘Any payment made to a member of the family in respect of a third party who is not a member of the family for HB or CTB purposes, for example a child in long stay hospital care, should be treated as income only if it is retained by or spent on a member of that family’.

They are thinking of 42(6)(b)!!

Ok, I the way to approach this is to appeal and state that you consider this to be either a voluntary payment or maintenance, and the LA should do the same….“you can take your pick!!”.... because they can’t rely on 46(6)(b) alone. They need to quantify the relationship, one way or the other, then one of maintenance or voluntary payment should bite.

(Caveat lector)

The voluntary payments will only be a full disregard if they are considered as partners and not former partner.

The maintenance payment does not carry a full disregard.

I think I would push, in your particular case, for the voluntary payments from a partner.

“In respect of” is interesting. It suggests to me an additional amount paid as part of the payee’s own benefit, not money paid to that person purely as an appointee.

And to the extent that the money is exclusively for her husband and does not include an extra amount for her, she is acting wrongly in spending it on herself, I think.

How is the partner in care paying the care fees?  If he is being funded by a local authority (social services) then the lion’s share of his own income would be charged against as his contribution towards what the local authorority would normally pay for someone with his particular care needs.  In this case he would only be left with his personal needs allowance (£23.50) per week.  Constant Attendance Allowance and Exceptionally Severe Disablement Allowance would not be payable after four weeks in care/hospital. 

If he is self funding because he has capital or is, for example, not required to pay for his care because he qualifies for funding by the NHS under Continuing Healthcare, then I suppose his income could be available to his spouse.  The local authority (housing authority) may be treating this income as spousal maintenance (taken into account for means-tested benefits) but for this to bite I would have thought that the person to whom the benefit is being paid would have to make a conscious decision to pass it over to or assign the money to his spouse.  I do not think he is obliged to do this as there no longer any ‘liable relative’ rules.  This could be further complicated as the gentleman in care needs an appointee, so someone with authority to do so (e.g. a deputy) may be required to make this decision for him.  I do not think an appointee would have the authority to make this decision.

mickd123 - 08 February 2013 08:17 AM

How is the partner in care paying the care fees?  If he is being funded by a local authority (social services) then the lion’s share of his own income would be charged against as his contribution towards what the local authorority would normally pay for someone with his particular care needs.  In this case he would only be left with his personal needs allowance (£23.50) per week.  Constant Attendance Allowance and Exceptionally Severe Disablement Allowance would not be payable after four weeks in care/hospital. 

If he is self funding because he has capital or is, for example, not required to pay for his care because he qualifies for funding by the NHS under Continuing Healthcare, then I suppose his income could be available to his spouse.  The local authority (housing authority) may be treating this income as spousal maintenance (taken into account for means-tested benefits) but for this to bite I would have thought that the person to whom the benefit is being paid would have to make a conscious decision to pass it over to or assign the money to his spouse.  I do not think he is obliged to do this as there no longer any ‘liable relative’ rules.  This could be further complicated as the gentleman in care needs an appointee, so someone with authority to do so (e.g. a deputy) may be required to make this decision for him.  I do not think an appointee would have the authority to make this decision.

The customer’s care is paid for by the NHS.  He is a paraplegic who is on a 24 hour ventilator.  I have spoken with my client and she seems to prefer keeping things as they are and soldiering on with rent payments.

I think I may try and have as much of the income disregarded as possible on money spent on her partner. She states his only expenses are toiletries and clothing.  I could maybe get travel for visits disregarded and gifts (if any).

Does anyone know if the ESA & IIB would be considered income for JSA? If not, I could pursue a claim for JSA(IB) and get HB/CTB passported (wishful thinking?)

Thanks again

chacha - 07 February 2013 05:45 PM

Allan Ramsay - 07 February 2013 03:56 PM

‘Any payment made to a member of the family in respect of a third party who is not a member of the family for HB or CTB purposes, for example a child in long stay hospital care, should be treated as income only if it is retained by or spent on a member of that family’.

They are thinking of 42(6)(b)!!

Ok, I the way to approach this is to appeal and state that you consider this to be either a voluntary payment or maintenance, and the LA should do the same….“you can take your pick!!”.... because they can’t rely on 46(6)(b) alone. They need to quantify the relationship, one way or the other, then one of maintenance or voluntary payment should bite.

(Caveat lector)

The voluntary payments will only be a full disregard if they are considered as partners and not former partner.

The maintenance payment does not carry a full disregard.

I think I would push, in your particular case, for the voluntary payments from a partner.

Thank you.

An appeal on voluntary payment grounds seems to be the best course of action.

I will let you know how I get on.

Thanks

I think you will find this easier if they have a formal written agreement that he will pass over £x per week to his wife at home. The local authority should take this and only this into account as spousal maintenance. He will then be free to spend or save the remaining money. Separate bank accounts may make life easier as his capital may accrue in a joint account causing problems in the means-test now or later. The question is, who will sign the written agreement on his behalf. I would imagine the Office of the Public Guardian would be OK with such an arrangement if a deputy were to sign on his behalf.